LAW, ECONOMICS, AND THE HISTORY OF FREE TRADE: A RESPONSE.

Author:Orford, Anne
Position:Response to articles in this issue, p. 68, p. 84, p. 104, p. 116, p. 131, p. 142, p. 147 - 2014 Kathleen Baker Memorial Lecture
 
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  1. VALERIE HUGHES AND DANIEL ARI BAKER: ON THE NATURE OF INTERNATIONAL TRADE LAW 1. EXPORT RESTRAINTS 2. COLONIALISM AND INTERNATIONAL FOOD FLOWS 3. COMPULSION II. HARRIET FRIEDMANN: ON SUBSIDIES AND THE STATE 1. CRITICAL THINKING AND THE STATE 2. SUBSIDIES AND AGRICULTURAL EXCEPTIONALISM III. MICHAEL TREBILCOCK: ON THE ORIENTATION OF THE INTERPRETER IV. CONCLUDING REMARKS: ON THE MAKING AND GROUNDS OF COMMUNITY **********

    I am very grateful for the initial invitation to present the 2014 Kathleen Baker Memorial Lecture at the University of Toronto, and the subsequent offer to publish the lecture with a series of commentaries in this special symposium of the Journal of International Law and International Relations. I particularly want to thank Professors Karen Knop, Jutta Brunnee, and Kerry Rittich for that opportunity, the journal editors for their work in putting together this symposium issue, and the discussants and audience at the original lecture for the extremely productive and wide-ranging conversation that followed it. I feel that there should be a new blessing: may you be invited to discuss your book project at the University of Toronto. In addition, I would like to thank all the authors involved in the symposium for the care they put into preparing their very thoughtful and generous commentaries. Any scholar would be honoured to receive such attentive, challenging, enriching, and insightful engagement with their project. I am pleased to have the opportunity to offer a brief response to some of the issues raised in these commentaries, in particular those by Valerie Hughes and Daniel Ari Baker, Harriet Friedmann, and Michael Trebilcock, who in quite different ways have sought to challenge aspects of my argument. In concluding, I will point to some of the important issues raised by the complimentary though distinct projects sketched by Jennifer Clapp, Grace Skogstad, L Jane McMillan, and Michael Fakhri.

    Collectively, these commentaries explore the question of how we should think about, write about, study, or understand the historical and contemporary relation between food security, free trade, economic integration, and international law, and perform a series of approaches to answering that question. The commentaries offer reactions to my provocation that we need to think in new ways about the role of trade agreements--as part of a longer story about the relation between the state, the market, and the social; produced through an intellectual community involving economists, lawyers, and certain kinds of civil servants and diplomats; reliant upon control over land, labour, and resources, and involving an ongoing process of interpretation and transmission of meaning.

    Before responding to the commentaries in more detail, it might be useful to stress some of the principal moves I make in the initial lecture. As I note there, a series of crises began to unfold from 2006 that reintroduced the question of hunger on a global scale onto the international political agenda with a new urgency. Two intense periods of food price volatility in 2006-8 and again in 2010-11 meant that close to 1 billion people were unable to access sufficient amounts of safe and nutritious food on a reliable basis. (1) This in turn led to a period of political volatility, with food riots reported in at least thirty countries and with sharply rising food prices contributing to the uprisings since characterised as the Arab Spring. (2) While there are certainly a disturbingly large proportion of people in industrialised countries who are food insecure, (3) the countries that suffer from food insecurity on a more generalised basis are all in Africa, Asia, Latin America, and the Caribbean. (4) In addition, FAO indicators report that the vast majority of undernourished people in the world today live in what it calls 'developing regions'--of the 805 million people who were chronically hungry in 2012-14, 752 million of them lived in Africa or Asia, and 37 million in Latin America or the Caribbean. (5) Thus around 98% of the chronically hungry people in the world live in what the FAO calls the developing regions. On the other hand, most of the world's food is produced outside industrialised countries. (6) Many industrialised countries, such as Great Britain, have depended on food produced elsewhere to feed their growing urban populations since the nineteenth century. (7) Thus the food crises of the earlier twenty-first century took place in the context of an interdependent world food economy, which nonetheless distributes vulnerability in systematically uneven ways. (8)

    Those crises were widely framed as presenting a global food security challenge. (9) That framing brought with it certain assumptions, which my article sought to revisit. First, the food crises were presented as global in three senses--as presenting a problem on a global scale, requiring solutions on a global scale, and requiring global institutions to be vested with jurisdiction and responsibility for deciding on the appropriate responses to those crises. Second, the characterisation of these crises as concerned with 'food security' brought them within a trajectory that had since the 1980s been framed in neoliberal terms--food security had been introduced in the mid-1980s as part of a move to discredit the notion of 'self-sufficiency' and argue for trade liberalisation and economic growth as solutions to world hunger. Third, quite different solutions to the 'challenge' of food security were proposed, with some institutions and commentators (for example in the international trade law field) seeking to reinforce dominant institutionalised policies and projects, while others presented the crisis as one that required a transformation of current systematic practices and values.

    My focus in the lecture was on exploring the ways international law has shaped entitlements to food, how a range of actors responded to the food price crises with proposals for increased economic liberalisation, and how that development should be understood as part of a broader battle for the state. In trying to make sense of the ways in which food crises had given rise to proposals for intensified liberalisation of agricultural production and trade, I sought to place current developments in a longer historical trajectory, in which famine and food riots have both accompanied and been the cause of transformations of food and land into market commodities over the past two centuries.

  2. VALERIE HUGHES AND DANIEL ARI BAKER: ON THE NATURE OF INTERNATIONAL TRADE LAW

    In their detailed commentary, Valerie Hughes and Daniel Ari Baker raise a series of concerns about my characterisation of the contemporary international trade law regime and about the relation between the history of the free trade project and its contemporary manifestation. Given the wealth of expertise that the two authors bring to the table as respectively Director and Dispute Settlement Lawyer at the Legal Affairs Division of the World Trade Organization, their reflections on the article offer an invaluable set of insights. However at several points they misrepresent my argument, in ways that undermine the claims I was making in the lecture.

    Given the limits of space, I will here just take up three issues that they raise in their commentary: (1) whether international trade lawyers and economists argue that WTO disciplines should be strengthened to constrain states from imposing export controls on raw materials during periods of scarcity; (2) how I presented the relationship between international food flows and colonial economic ordering, and (3) whether the current project of economic liberalisation contains within it an element of compulsion. Their commentary also raises questions about domestic subsidies and support, which I take up in my response to arguments on that point made by Harriet Friedmann.

    1. Export restraints

      Valerie Hughes and Daniel Ari Baker cite me as saying:

      According to Professor Orford, international trade rules "constrain states from ... imposing export controls on raw materials during periods of scarcity". (89-90)

      However, the quoted phrase appeared in the following passage:

      During the debates over appropriate responses to food crises, it became clear that many commentators still felt it was appropriate that ... international trade rules should be extended to constrain states from ... imposing export controls on raw materials during periods of scarcity (17, emphasis added).

      Hughes and Baker's rephrasing made it look as though I was making a claim about the current legal position, which I clearly was not doing. Rather, I was unambiguously making a point about how trade law experts and advocates use the food price crisis to argue for an extension of international trade law rules. There are multiple examples of experts, states, and international officials arguing for the disciplining of export restrictions on foodstuffs during the food price crises of 2006 and since.

      Export restraints began to receive renewed attention from trade lawyers and economists in part due to the use of export restraints by developing countries during the 2007/8 and 2010/11 food price crises. 25 countries restricted exports of grain or rice during the 2007/8 price increase, including Argentina, Cambodia, China, Egypt, India, Kazakhstan, Pakistan, Russia, Ukraine and Vietnam. (10) A smaller number of countries resorted to export restrictions in 2010, with the most significant intervention being the decision by Russia, Ukraine and Moldova to restrict exports of grain after a disastrous harvest due to extreme hot weather and widespread fires. (11) The restrictions insulated domestic economies from the turmoil on world markets, with studies finding that the decision by the world's three most populous developing countries, China, India, and Indonesia, to impose export restraints on rice was a major reason that fewer people than initially feared were...

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